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How the Destruction of Property Rights Made Indigenous People Vassals of the State

By Marco den Ouden

January 9, 2022

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Imagine you and your neighbours living peacefully in a small village in a valley in the Central Interior of British Columbia. You fish, you hunt, you farm the land, you raise livestock and you raise your families here. There is a community church. And a community graveyard. Your town is self-sufficient. No one depends on the government. Problems are few. Until one day government agents show up and tell you they’ve just finished building a dam down the valley a few miles. What? No one told you about that. Apparently, they’ve been building it for two years. They just plugged the last gap and the river will be rising steadily. You’re told you better get out before you’re flooded out. Oh yeah! They do offer some compensation and will help you relocate. They ask you to sign on the dotted line to cede your property. You refuse. However, you have no choice but to move. The justification for this? The dam is for the common good.

The Cheslatta T’en, a tribe of the Carrier First Nations, had lived in the Nechako Valley for 10,000 years.

The Cheslatta T’en, a tribe of the Carrier First Nations, had lived in the Nechako Valley for 10,000 years. They were a hunter/gatherer society whose traditional territory covered a large swath of central British Columbia that included “the valleys of the Upper Fraser, Blackwater, Nechako and Bulkley Rivers as well as areas around Stuart and Babine lakes up to the borders of Bear Lake. To the east, Carrier traditional territory extended as far as the Rocky Mountains.”

In 1950, the Cheslatta “lived on 17 reserves, totaling some 1052 hectares on or near Cheslatta and Murray Lakes.” These reserves included several villages and some areas that were exclusively used as pasture. B.C.’s economy after WWII was sluggish with high unemployment and both the federal and provincial governments courted Alcan Aluminum to build a smelter at Kitimat. An energy intensive business, the deal with Alcan included the right to build a dam and power plant. Dam construction for the Kemano I power project, as it was known, began in 1951. A poll showed 93.9% of British Columbians favoured the project.

The Kenney Dam, the “largest sloping, rock-filled, clay-core dam in the world” was completed in 1952. No thought was given to the Cheslatta people living in the Nechako Valley. In fact, the story of Cheslatta is a tragedy that is not well known.

Geographers J.E. Windsor and J.A. McVey write that:

The story of the Cheslatta is a disturbing one. In March 1952, when the Kenney Dam was nearing completion after a nearly two-year construction period, Alcan notified the Department of Indian Affairs (DIA) that the Cheslatta would have to be evacuated. On 3 April 1952 the DIA informed the Cheslatta that they would have to move immediately. Until that day, the Cheslatta had never been informed either that the dam was being constructed (the reservoir is enormous and the dam site is many kilometres from the traditional Cheslatta territory) or that their land was to be flooded. Prior to April 1952, the Cheslatta were entirely self-sufficient and “knew nothing of the government”.

Windsor and McVey quote a 1993 essay in Harrowsmith by J. Goddard:

By all accounts, the Cheslatta people once enjoyed a prosperous life. In late 1951, an Alcan surveyor wrote admiringly of their farms, traplines and wagon roads. ‘The Indians,’ he noted; ‘are comfortably settled in an area that provides them with enough game to be self-supporting and enough hay lands and pasture to support their (cattle and horses). (Goddard 44)

DIA officials met with the Cheslatta on April 21st to get the natives to “sign the necessary documents to surrender title to their traditional lands (which the DIA had already deeded to Alcan).” The authors continue,

“Although the Cheslatta refused to sign the documents, DIA records show that the Cheslatta T’en unanimously approved the surrender of land. To this day, the Cheslatta insist that the signatures on the documents are forgeries.”

It should be noted that “most ‘signatures’ consist of an ‘x’ witnessed by a DIA official representative.”

“Those who refused to move were told they would be forcibly removed,” the study continues, and refusal would deprive them of compensation.

How much compensation were the Cheslatta T’en paid? With ten days to impending flooding, they were induced to accept $77.22 per hectare for their land. Oh, I should mention that “the few non-natives (mostly ranchers) who were displaced by the flooding were paid an average of $1544 per hectare of land and were provided with an average of two years notice of the reservoir flooding.”

To add insult to injury, the Cheslatta were moved to Grassy Plains, lands that traditionally belonged to a different people, the Wetsuet’en. “Two weeks after they were evicted,” Windsor and McVey continue, “all their buildings were razed and their ranches bulldozed. When the Alcan contractors refused to burn the Cheslatta church (a Christian church built in 1915) in the village of Bel-ga-chek, the Indian agent flew in by helicopter and razed it himself.”

Although promises had been made that “graveyards would not be affected,” the cemetery at reserve # 9 was eroded resulting in “several coffins being carried downstream in the current.”

All of this, of course, was for the common good. The authors quote another geographer, J.B. Waldram, to the effect that “the common good more and more looks like the good of the party in power.”

What became of the Cheslatta T’en after that? “By 1990, alcohol use among the Cheslatta had reached epidemic proportions and welfare dependency was 95%.” A program introduced that year to “help young Cheslatta rediscover their roots and their heritage” brought both alcohol and welfare dependency to under 35%. Indeed, the authors aver that “the flooding of the Nechako Reservoir left the Cheslatta not only ‘homeless’ but ‘placeless’, that is, without ‘identity’.” It was the rediscovery of their identity that brought them out of their morass.

Today, the Cheslatta are “back on the road to self-sufficiency. They have, through their business arm – Nootsenay Enterprises – joined with two partners to create Cheslatta Forest Products.” In 2002, “the Cheslatta were awarded a Community Forest License” covering “some 25,000 hectares of Crown Land around Cheslatta Lake.”

 

Understanding Indigenous Property

Native Americans did not have formal structures to their property. They did not have title deeds. Their property rights were asserted through tradition, and as written language was only used by the native cultures of Central America—the Aztecs, the Mayans, etc.—all records were carried forward through oral tradition. But the property, the territories to which they laid claim, were very real indeed.

Existence is not predicated on knowledge. Reality exists independent of our knowledge of it. And so too it is with property rights. Most Western societies subscribe to the Lockean theory of property rights, that a property right is created from the state of nature by mixing one’s labour with the land or other resources provided by nature. To the extent that aboriginal peoples had mixed their labour with the land, they had a property right to it, even if they did not understand the concept. And the Cheslatta T’en certainly had mixed their labour with the land—they hunted, they fished, they farmed, they harvested the forest, they built homes and even a church. To say they didn’t have a property right because they didn’t understand the concept of property rights is absurd.

The British Crown, in fact, did recognize native property.

The British Crown, in fact, did recognize native property. The Royal Proclamation of 1763 “stated that the Crown must negotiate and sign treaties with the indigenous people before land could be ceded to a colony.” (Wikipedia) The Wikipedia article notes that while treaties were concluded in the prairie provinces, “the Government of the Colony of British Columbia, however, failed to negotiate many treaties and as a result, most of the province’s land is not covered by treaties.”

Today, Canadian governments are trying to rectify this situation. The British Columbia Treaty Process (BCTP) has been ongoing since 1993. The landmark treaty concluded with the Nisga’a people in 2000 was started before the BCTP began and is considered a blueprint for the process. Two treaties have been drafted under BCTP since the process began but there remain many unceded lands. Indeed, when my wife and I attended a theatre event on Granville Island not long ago, there was a sign that read: “We acknowledge that the land on which we gather is the unceded territory of the Coast Salish peoples, including the territories of the xʷməθkwəýəm (Musqueam), Skwxwú7mesh (Squamish), Stó:lō and Səĺílwətaʔ/Selilwitulh (Tsleil-Waututh) Nations.” (Vancouver Theatre Sports League).

Such territories—properties if you will, are all collective properties. Some indigenous peoples, like the Nisga’a, now that they have the sovereignty to act, are in the process of taking their newly negotiated land and converting it from collective ownership to deeded properties.

 

The Difference between Capital and Property

While it is argued that the governments of the day did not recognize the Cheslatta sense of place in their traditional lands—their connection with the land—at a more fundamental level, the government failed to recognize the property rights of the Cheslatta. They had a justified claim to their land and the government failed to recognize it. The Cheslatta were evicted in the name of the “common good.” Sense of place is and must be tied to a sense of property entitlement.

It should be noted that in their footnote 12, Windsor and McVey note that the problems of alcoholism and dependency faced by the Cheslatta also decimated other tribes not facing displacement. But they aver that the displacement aggravated the situation. Undoubtedly true, but it raises an important question—why?

One problem is the nature of Native Reserves. All property is collectively owned by the tribe. Individuals cannot own property as such. Individuals can get a Certificate of Possession, but it is at the discretion of the band and the federal government. One abstract describes the situation:

“Although the CP holder gains similar property rights to an off-reserve resident, there are several important differences. The ability to transfer possession, the legality of wills, the right to an equitable division of property after divorce, the power to lease, and the ability to use property as equity are different from off-reserve practices. As well, Indian private property rights are subject to the exclusive power of Parliament, and to the discretionary will of the Minister of Indian Affairs.” (Alcantara 2003)

Relevant to this discussion is Hernando de Soto’s discussion of the difference between property and capital. The Peruvian economist notes that most people in the “third world” have property and lots of it. What they don’t have is capital. The upshot is poverty and squalor.  The essence of capital is in the potential of property. It is a concept, not a tangible entity. And in the West, it is based on the fixing of property to its owners through property titles. “The moment you focus your attention on the title of a house, for example, and not the house itself, you have automatically stepped from the material world into the conceptual universe where capital lives.”

Besides being able to fix property through titles, de Soto lists five other properties of capital. Perhaps the most important is fungibility. This means the ability to interchange property titles. For example, you can mortgage your house to get capital for various projects. You don’t actually trade the house, but the right to a title. The physical asset remains yours unless you default on the contract.

Native land tied up in the reserve system is like “third world” property that is not fixed—in other words, is not capital. De Soto calls such property “dead capital.”

Some indigenous people in Canada are making efforts to change this. In 2012, Manny Jules, former chief of the T’Kemlups tribe near Kamloops spearheaded a move to introduce the First Nations Property Initiative. It is a proposal to give the land back to the people, “take the feds out of the equation and let aboriginals do what they want with it,”  One of the objectives was to create private property rights within the reserve. (Ferreras 2012)

Indeed, today native land claims are widely recognized in Canadian society as a valid pursuit.

Indeed, today native land claims are widely recognized in Canadian society as a valid pursuit. In 2000, an historic treaty ceded 2000 square kilometres of the Nass Valley to the Nisga’a as a self-ruling nation. Addressing his cheering supporters, Chief Joe Gosnell said, “We are no longer beggars in our own land. We are free to make our own mistakes, savour our own victories and stand on our own feet.” (Hopper)

Like the T’Kemlups, one of the objectives was to turn their collectively owned land into a system of individual ownership. In 2013, the first three privately owned homes were created on Nisga’a land. Kevin McKay, chair of the Nisga’a Lisims Government said, “We negotiated our way into Canada, and what British Columbians take for granted in land ownership is now available to Nisga’a homeowners. We aspire to a market economy, and this is a key feature of any market economy — and we’re no different.” (Hopper)

As a self-ruling nation, the Nisga’a could act unilaterally. Twelve other bands were eager to follow these two bands out of serfdom and into prosperity but require permission from the federal government to do so. Sadly, the Assembly of First Nations, representing 600 bands across Canada, condemned the Nisga’a move declaring that it “will lead ultimately to the individual privatization of indigenous collective lands and resources and impose the colonizer’s model on our Peoples.”

The tragedy of the Cheslatta T’en could have been avoided if the governments of the day had recognized that these people did not just live, work and play in their territory, but they, in fact, owned it. They had a vested right to the territory based on their mixing of their labour with the land. But their rights were ignored, their land usurped, and their people forcibly removed to alien territory to their detriment. All in the name of the common good.

The Cheslatta should have been given self-rule long ago as the Nisga’a have since. Indeed, a good resolution to the problems afflicting native communities is to give them self-rule. Let them be masters in their own house instead of serfs of the federal government.

 

I wish to express my gratitude for the constructive feedback I received on the first draft of this essay from my editor, Donna Paris. It improved the final essay greatly.
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Works Cited

 

Alcantara, Christopher (2003). “Individual Property Rights on Canadian Indian Reserves: The Historical Emergence and Jurisprudence of Certificates of Possession“. The Canadian Journal of Native Studies, XXIII 2(2003): 391-424

De Soto, Hernando (2000). The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, Basic Books (see my summary of de Soto on The Difference Between Property and Capital on my blog)

Ferreras, Jesse (2012). “First Nation Private Property Proposal Feeds Fears of “Land Rush”“. Huffington Post, 10/06/2012

Goddard, J. “Sold Down the River”. Harrowsmith, December 1993

Hopper, Tristin (2013). “B.C. First Nation leads historic and controversial move toward aboriginal private home ownership“. National Post, Nov. 8, 2013

Windsor, J.E. & McVey, J.A. (2005). “Annihilation of place and sense of place: the experience of the Cheslatta T’en Canadian First Nation within the context of large-scale environmental projects”. The Geographical Journal, Vol. 171, No. 2, June 2005

 

 

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